PREM CHAND JAIN, C. J. ( 1 ) THE question of law that needs determination by us is in the following terms:"whether a Division Bench hearing writ appeal against an order of Single judge has power to remand the case to the Single Judge concerned or not ?" ( 2 ) W. P. 5540 of 1975 was rejected by a learned single Judge of this Court on 8th January 1976. Writ Appeal 35 of 1976 was preferred against that order which came up for hearing before a Division Bench of this Court. Without going into the merits of the case, on the points that arose for consideration, the appellate bench passed the following order :"for the reasons stated above, we set aside the order under appeal and remand W P. 5540/75 for fresh disposal in accordance with law after giving opportunity to the appellant to implead the State Government and the owner or the land. Writ appeal allowed No costs. "sd. K. Bhimiah judge sd S M. Sait, judge ( 3 ) EARLIER in this Court a question had arisen regarding the power of the division Bench to remand the case to the single Judge in Ninganna v. Narayana gowda (1983 (1) Kar. L. J. 241) Explaining the appellate jurisdiction of High court under Section 4 of the Karnataka high Court Act, 1961 and the concept of power exercisable by the learned single judge and the Division Bench in appeal while exercising the jurisdiction under article 226 of the Constitution, it has been observed thus : 'when an appeal is preferred under section 4 of that Act against an order of a single Judge to a Division Bench, the jurisdiction which the latter exercises is also the very same jurisdiction under Article 226 of the Constitution. On this aspect, a Full Bench of this court in State of Karnataka v. H. Krishnappa ( I. L. R. 1975 (Kar.) P. 1015 at 1049) stated as follows :"when a Division Bench entertains an appeal from a decision of a single Judge in exercise of powers under Article 226, the Division Bench in deciding such appeal, exercises the same power under that Article, whether it (the Division Bench) affirms, reverses or modifies the decision of the single judge""when the Division Bench, which hear and decide appeals from the decisions of single Judge, are also a part of the High Court and exercise the same powers under Article 226, while deciding such appeals. . . . "the writ appeal jurisdiction, therefore, cannot be compared and is not akin to, an appellate jurisdiction as ordinarily understood, which presupposes the existence of a superior Court and an inferior Court. (See Shankar ramachandra Abhyankar v. Krishnaji dattatreya-A. I. R 19/0 S. C. p 1) and no such relationship exists 'between a single Judge and a Division Bench as both exercise the jurisdiction vested in the High Court. There is no difference between a Writ Petition referred to a division Bench or a Writ Petition which comes up before a Division Bench through a writ appeal, in the matter of exercise of the jurisdiction and powers of this Court under Article 226 of the constitution. Therefore, in our view in cases where a Division Bench hearing a writ appeal against an order of single judge rejecting a Writ Petition at preliminary hearing without notice to the respondents or in a case of this type where the Writ Petition was heard and decided without impleading necessary parties as a result of which defect, the order in the Writ Petition is liable to be set aside, the writ matter have come up before the Division Bench, the most appropriate course for the Division bench is to decide the Writ Petition itself. Finding that in view of the aforesaid judgment, the Bench had no jurisdiction to remand the case for the decision by the learned single Judge, the matter was referred to a Division Bench to re hear the Writ Appeal 35 of 1976. On reference by the learned single Judge the appeal was put up for hearing before the bench. Finding that in view of the aforesaid judgment, the Bench had no jurisdiction to remand the case for the decision by the learned single Judge, the matter was referred to a Division Bench to re hear the Writ Appeal 35 of 1976. On reference by the learned single Judge the appeal was put up for hearing before the bench. Before full dressed arguments could be advanced by the learned Counsel for the parties, an unreported Judgment of this Court in J. R. Venkategowda and Javare Gowda v Hassan D C. C. Bank and others (W A. Nos 133 and 134/ 87 DD. 26-6-1987) was brought to the notice of the Bench wherein with regard to the power of remand the Bench has observed thus :"during the discussion yet another aspect was presented. It was mentioned that in view of the circumstances that the jurisdiction of the Appellate bench under Section 4 of the Karnataka high Court Act is not strictly an Appellate jurisdiction in the sense generally understood, as there is, and could be, no relationship as between a Superior court and an inferior Court and that appellate jurisdiction being necessarily a mere second look at the matter by the same Court, the Appellate Bench cannot remand a matter to the single Judge but should itself finally dispose of the writ Petitions. This proposition might, perhaps, have to be considered in the light of the observations made by the supreme Court in Umaji Keshao Meshram and Ors. v. Smt. Kadhikabai and Anr, ( AIR 1986 SC 1272 )". In view of the aforesaid observation in the unreported Judgment, the Bench thought it proper to refer the question stated above for decision by a Full Bench. That is how we are seized of the matter. ( 4 ) AT the outset it may be observed that challenge to Section 4 of the Karna- taka High Court Act 1961, has been negatived by a Full Bench of this Court in state of Karnataka and Others v. H. Krishnappa and Others CILR 1975 Kar. 1015) and the provision for the writ petitions to be heard and decided by a single judge has been upheld. 1015) and the provision for the writ petitions to be heard and decided by a single judge has been upheld. The question that the conferment of the appellate jurisdiction on the High Court over the decision of a single Judge of the High Court would amount to alteration of organisation of the High Court or re-organisation of the High Court and the question that the State Legislature had no comptence to make such a law touching the organisation of the High Court have also been decided and the contentions advanced in support thereof have been negatived. The passages out of the Judgement of the full Bench which considered and brought out the scope of the appellate jurisdiction read as under :"division Benches of a High Court hearing appeals from decisions of single judges of that High Court, is nothing new to High Courts. Such a system has been prevailing for over a hundred years in the High Courts in the erstwhile british India and their successor Highcourts. " as pointed out by the Supreme Court in Ladli Prasad v. Kamal Distillery (AIR 1963 S. C. 1279 at p. 1285), where an appeal lies to a Division bench of the High Court against a judgment of a Single Judge of the high Court exercising original or appellate jurisdiction, the decision of the single Judge should be regarded as a decision of the Court immediately below the Division Bench which hears the appeal, but the single Judge of the high Court cannot be regarded as a court subordinate to the High Court. The single Judge being regarded as a court below the Division Bench which hears the appeal from his decision, is a necessary incident of the concept of the appellate jurisdiction which consists of powers to examine the correctness of the decision appealed against and to reverse, modify or affirm it, just as a full Bench of the High Court has power to examine the correctness of a ruling of a Division Bench of a single Judge of the same High Court and to overrule such ruling. Judges of the High Court while exercising different jurisdictions, have different powers. Judges of the High Court while exercising different jurisdictions, have different powers. The appellate jurisdiction of the High Court over the original jurisdiction exercised by single Judges of the High Court and the power of the full Bench to overrule the rulings of division Benches or single Judges of the same High Court, do not imply the existence of any watertight compartments among the Judges of the High court or any hierarchical tiers or strata of Judges in the High Court. A Judge exercising the original jurisdiction in one case, may sit in a Division Bench exercising appellate jurisdiction in another case and may sit in a Full bench in yet another case. Thus, the appellate jurisdiction conferred by Section 4 of the High Court Act 1961 does not bring about any alteration in the constitution or organisation of the high Court. "as stated earlier, when Article 226 of the Constitution confers powers on the high Court, such powers become capable of being exercised in accordance with any general right of appeal from the decisions of the High Court and there is nothing in Article 226 which requires that the powers thereunder must be exercised once and for all. In theory, an appeal is a continuation of hearing of the suit or other original proceeding and ordinarily the appellate court has all the powers which the court of first instance can exercise. When a Division Bench entertains an appeal from a decision of a single judge in exercise of powers under Article 226, the Division Bench, in deciding such appeal, exercise the same power under that Article, whether it (the Division Bench) affirms, reverses or modifies the decision of the single Judge. The nature and content of the power conferred by Article 226 cannot be said to have been interfered with by a mere provision for an appeal, without anything more, to a Division Bench from a decision of a single Judge in exercise of powers under that Article. The provision for an appeal, as in present cases, merely regulates the exercise of that power by the High Court. "but, the Full Bench Judgment referred to above has not gone into the amplitude of the appellate power nor has the same been decided as it did not arise for consideration. The provision for an appeal, as in present cases, merely regulates the exercise of that power by the High Court. "but, the Full Bench Judgment referred to above has not gone into the amplitude of the appellate power nor has the same been decided as it did not arise for consideration. Thus, the question has to be gone into keeping in view the observations of the Bench in Ninganna's case and the doubt cast by the latter Division bench and commending reconsideration of the said view in the light of the Judgment of the Supreme Court in Umaji keshao Meshram and Ors v. Smt. Radhikabai and Anr ( AIR 1986 SC 1272 ). ( 5 ) AS the question posed before us is of considerable importance, we thought it proper to request Shri R. N. Narasimha murthy, Senior Advocate to assist us. Shri H K. Vausdeva Reddy, learned Counsel, who inteivened with our perm ssion, has also given assistance by making submissions with regard to the relevant points necessary for deciding the question posed for decision. ( 6 ) BEFORE finding out an answer to the question, it may be observed at the outset that a learned single Judge of the high Court cannot be regarded as a Court subordinate to the High Court, that an appeal has been provided under a statute validly enacted by the Legislature, that the appellate jurisdiction conferred by section 4 of the Karnataka High Court act, 1961, does not bring out any alteration in the constitution or organisation of the High Court and that provision for an appeal merely regulates the exercise of that power by the High Court. As we find, Section 4 of the Karnataka High court Act does not define the scope of the appellate power. Again, there are no relevant rules in this respect Normally, when a power of appeal is conferred, it implies conferment of all incidental and ancillary powers necessary to effectuate the grant of specific power. Further, such an express power, if not specifically hedged by any limitation, inheres within it, all qualities and attributes implied in the nature of such a power. Mr. Nara- simha Murthy, learned senior Advocate, had drawn our attention to Rule 39 of the writ Proceedings Rules which reads :"39. Application of the High Court of Karnataka Rules, etc. . Further, such an express power, if not specifically hedged by any limitation, inheres within it, all qualities and attributes implied in the nature of such a power. Mr. Nara- simha Murthy, learned senior Advocate, had drawn our attention to Rule 39 of the writ Proceedings Rules which reads :"39. Application of the High Court of Karnataka Rules, etc. . The provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court fees and Suits Valuation Act, 1958, and the provisions of the Code of Civil procedure, 1908, shall apply, as far as may be, to proceedings under Article 226 (and/or Article 227) and writ appeals in respect of matters for which no specific provision is made in these rules. "on the strength of the aforesaid rule, it was sought to be aigued by the learned counsel that the provisions of Section 107 and the provisions of Order 41 Rules 23 to 26a which confer power of remand on the appellate Court would apply to writ appeals. It was also submitted by the learned Counsel that the Supreme court in Umaji's case has held that Letters patent Appeals lie to a two Judge Bench of the High Court against a decision rendered by a single Judge exercising even the constitutional jurisdiction vested in the High Court under Article 226 and that once an appeal lay, the power of remand was incidental to the powers exercisable by the Division Bench as an appellate Court. ( 7 ) WHILE putting forth opposite point, mr. Vasudeva Reddy, learned Counsel, had submitted that as the Constitution provides for the establishment of the High court as a single entity and confers jurisdiction on the Court as such and not on judges individually, an appeal provided under Section 4 of the Act cannot at all be regarded as an appeal as generally understood, for, the very concept of appeal presupposes the existence of an infeiior and a superior Court and a provision for an appeal from the former to the latter. The learned Counsel therefore submitted that a writ appeal cannot at all be equated to an appeal which lies to the superior Court which could exercise all the powers conferred on an appellate court under Order 41 Rules 23 to 26a of the Code. The learned Counsel therefore submitted that a writ appeal cannot at all be equated to an appeal which lies to the superior Court which could exercise all the powers conferred on an appellate court under Order 41 Rules 23 to 26a of the Code. ( 8 ) BEFORE finding out as to which viewpoint is more plausible, it may be appropriate to examine the normal 'attributes of an appellate power. In HALSBURY's LAWS of ENGLAND, IV Edition, para 677, Page 37, it is stated :"an appeal is an application to a superior Court or Tribunal to reverse, very or set aside the judgment, order, determination, decision or award of an inferior Court or Tribunal in the hierarchy of Courts or Tribunals on the ground that it was wrongly made or that as a matter of justice or law it requires to be corrected. "to the same effect is the statement found in American Jurisprudence, II Edition, vol. 4, Page 532, Para 1, which reads thus :"appellate jurisdiction is the authority of a superior Tribunal to review, reverse, correct, or affirm the decisions of an inferior Court, or of a Tribunal having the attributes of a Court, in cases where such decisions are brought before the superior Tribunal pursuant to law. "as to the scope of the power, in the same book it is stated at paras 4 and 5:"appellate jurisdiction is derived from the constitutional or statutory provisions by which it is created, and can be acquired and exercised only in the manner prescribed. Thus, the determination of the existence and extent of appellate jurisdiction depends upon the terms of the statutory or constitutional provisions in which it has its source. ""a grant of appellate jurisdiction implies inclusion of the power necessary to exercise it effectively, to make all orders that will preserve the subject of the action, and to give effect to the final determination of the appeal. Also implied is the power to protect the jurisdiction and to make the decisions of the Court thereunder effective. In aid of its appellate jurisdiction, the court has authority to control all auxiliary and incidental matters necessary to the efficient and proper exercise thereof, for which purpose it may, when necessary, prohibit or restrain the performance of any act that might interfere with the proper exercise of its rightful jurisdiction in cases pending before it. In aid of its appellate jurisdiction, the court has authority to control all auxiliary and incidental matters necessary to the efficient and proper exercise thereof, for which purpose it may, when necessary, prohibit or restrain the performance of any act that might interfere with the proper exercise of its rightful jurisdiction in cases pending before it. " ( 9 ) THE thrust of the argument of Mr. Reddy opposing a power in the Division bench hearing a writ appeal to remand the case is that the Division Bench being part of the same High Court as the single judge who decides the Writ Petition, does not have the same powers as ordinarily an appellate Court would have over the subordinate Court against whose decision the appeal is being heard. What is sought to be projected is that the power of remand is a power to command a subordinate Court or a Tribunal to rehear a cause and such a power cannot be implied in the appellate power of the division Bench of the High Court. Our attention was drawn to the observations of the Supreme Court in Shankar Ram- chandra Abhyankar v. Krishnaji Datta- traya Bapat ( AIR 1970 SC 1 ) which reads as under :"such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate {jurisdiction, at least those which are most known in the United states, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. According to Article 1762 the most usual modes of exercising appellate {jurisdiction, at least those which are most known in the United states, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing for re. examination but the law. The former mode is usually adopted in cases of equity and admirality jurisdiction; the latter, in suits at common law tried by a jury. "on giving my thoughtful consideration to the entire matter, I find that the view point put forth by Mr. Vasudeva Reddy is not tenable. As the Supreme Court has observed in Shankar Ramchandra Abhayankar's case, "the appellate jurisdiction may be exercised in a variety of forums and, indeed, in any forum in which the legislature may choose to prosecute". In the instant case, the power of appeal has been conferred on the Division Bench under the Karnataka High Court Act. Therefore the quality and the nature of power has to be inferred from the statutory provision conferring such power. It is correct that neither the Act defines the scope of appellate power nor are there any rules; but when an appellate power is conferred, the Court which exercises the said power at a given point of time will exercise the power so vested in it and such exercise may result in modifying, reversing, correcting, reviewing etc. , of a decision rendered by the original Bench. Moreover, when an express power of appeal is conferred, then normally such a power inhers within it all qualities and atiributes implied in the nature of such a power. ( 10 ) THERE can be no gainsaying that a learned single Judge while exercising the power of deciding a Writ Petition (by virtue of allocation of work) does not sit as a subordinate Court or Judge subordinate to those who constitute a division Bench as the question of subordination does not arise at all. Resultantly the applicability of the provisions of order 41, Rules 23 to 26a is not attracted. Resultantly the applicability of the provisions of order 41, Rules 23 to 26a is not attracted. But a power or a jurisdiction entrusted to a particular Judge as part of the function of the High Court may involve the exercise of a power or jurisdiction which is subject to a superior power like an appellate power. Exercise of power by a single Judge of the High court depends upon the allocation of work by the Chief Justice. Each one exercises the power/jurisdiction of the high Court. The decision of the learned single Judge, by virtue of a specific statutory provision, is subject to review in appeal by the Division Bench. In Ladli prasad v Kamal Distillery ( AIR 1963 sc 1279 ) the Supreme Court has observed :-"where an appeal lies to a Division bench of the High Court against a judgment of a single Judge of the High court, exercising original or appellate jurisdiction, the decision of the single jodge should be regarded as a decision of the Court immediately below the Division Bench which hears the appeal, but the single Judge of the high Court cannot be regarded as a court subordinate to the High Court. "when a judgment of a learned single judge is appealed against, the single judge does not become subordinate to the appellate Bench though as observed by the Supreme Court above, the decision of the single Judge should be regarded as a decision of the Court immediately below the Division Bench which hears the appeal. Nature of the appellate power exercised by the Division Bench is not curtailed in any way merely for the reason that the writ appeal is an intra-Court appeal. The Bench while dealing with the appeal may be faced with various problems, eg. the learned single Judge may allow a Writ Petition and issue a writ on a pure question of law without going into the other questions. The division Bench in appeal may disagree with the interpretation of law which would result in the reversal of the order of the single Judge. Resultantly, the other questions would survive for consideration. In such a situation the bench may choose to decide the other questions itself. But there will be nothing wrong for the Bench to remand the case for consideration by the learned single Judge, of the other questions to be decided on merits. Resultantly, the other questions would survive for consideration. In such a situation the bench may choose to decide the other questions itself. But there will be nothing wrong for the Bench to remand the case for consideration by the learned single Judge, of the other questions to be decided on merits. The appeal is against the decision of a learned single judge. The Bench should have the benefit of the opinion of the learned single judge on all points. If the Bench does not have the opinion and findings of the learned single Judge, will it not be handicapped to some extent while deciding the other questions by itself ? Ordinarily, the bench in appeal does not interfere with the findings arrived at by a learned single judge on facts. In such a case it would be more appropriate to obtain the benefit of the opinion of the learned single judge. ( 11 ) NOW take some other case where the Writ Petition has been dismissed for non-prosecution or in limine on the ground of delay or that the Writ petition is not maintainable etc. Can in such case an argument justifiably be raised that in the event of the Appeal bench taking a contray view the Writ petition cannot be rem nded and has to be decided by the Bench ? Obviously, the answer has to be in the negative. In such cases the Court of appeal may not like to convert itself into original Court having jurisdiction to hear a Writ Petition and thereby decide the Writ Petition on merits. Moreover, the appeal Court may not like to deprive a party of its right of appeal by deciding the petition on merits. ( 12 ) FURTHER, under Section 483 of the Indian Companies Act, 1956, which reads as under :"appeals from any order made, or decision given, in the matter of the winding up of a company by the Court shall lie to the same Court to which, in the same manner in which, and subject to the same conditions under which, appeals lie from any order or decision of the Court in cases within its ordinary jurisdiction. "an appeal lies to the Division Bench of the High Court. "an appeal lies to the Division Bench of the High Court. This provides an appeal to the -same Court' in the same manner, as provided by law regarding appeals from any order made in the exercise of its original jurisdiction of the same Court. The appeal will be under Section 4 of the act read with the aforesaid provision. The Company Court has to hold trial to resolve several questions arising before it. If there is a 'mistrial', can it be said that the appellate Bench itself should hold the re-trial on it. The answer has to be in the negative as it would be imposing an unwarranted restriction on the power of the appellate Bench. ( 13 ) THE power of appeal, as earlier observed cannot be hedged by any limitation, as conferring such power implies in it all incidental and ancillary powers necessary to effectuate the grant of specified power. In Income Tax Officer, cannanore v M. K Mohammed Kunhi ( AIR 1969 SC 430 ) question arose whether an Appellate Authority has a power to stay the operation of the order appealed against, in the absence of a specific provision and Supreme Court said that such a power was implicit in the conferment of the appellate power. In this connection the Supreme Court referred to many instances of the scone of an appellate power and referred to a Full Bench decision of Kerala High Court reported in dharmadas v State Transport Appellate Tribunal (AIR 1963 Kerala 73) (apparently with approval) and observed at p 434 :"the Full Bench decision in dharmadas v State Transport Appellate Tribunal, 1962 Kerl. J. 1133 = ( AIR 1963 Ker 73 ) (FB) related to the question whether a remand could be ordered in exercise of appellate jurisdiction under Section 64 of the Motor vehicles Act in the absence of any express power to that effect existing in the statute. It was held that the power to remand was incidental to and implicit in the appellate jurisdiction created by Section 64. It was held that the power to remand was incidental to and implicit in the appellate jurisdiction created by Section 64. "almost an identical question arose before the Division Bench of Calcutta High Court in Mahadeo Prosad Saraf v. S. K. Srivastava and Others (AIR 1963 Calcutta 152) Para-16, from the order of Bose, C J. may be quoted here usefully :"with regard to the question whether the appellate Court's power is limited only to the consideration of the question whether a Rule Nisi should issue or not and to remit the case to the lower court in the event of its coming to the conclusion that a case for a Rule Nisi had been made out, it is to be observed that such limitation or restriction on the power of the appellate Court is not warranted. There may be cases in which the appellate Court may consider it desirable and proper to dispose of the proceeding under Article 226 of the constitution finally at the appellate stage without sending the case back for disposal by the tial Court. To take an example if an application under article 226 is made for challenging the legality of an act on the ground that the provisions of a statute pursuant to which the action is taken are ultra vires and that is the sole ground on which the application is based and the trial court after hearing the petitioner on the question dismisses the application in limine and refuses to issue a Rule nisi and the petitioner prefers an appeal against the order of dismissal, can it be said that the appellate Court is bound to remand the case to the trial court if it is satisfied that there is substance in the contention of the appellant ? The answer, in my view, must be in the negative. No investigation into any question of fact is necessary in such a case and no filing of affidavit setting out any fact may be called for in such a case. The only question for determination before the appellate court in such a case is a question of law and there is therefore no reason why the appellate Court cannot dispose of the proceeding under Article 226 finally instead of sending the case back for disposal by the trial Court and driving the parties to incurring of further unnecessary costs. The only question for determination before the appellate court in such a case is a question of law and there is therefore no reason why the appellate Court cannot dispose of the proceeding under Article 226 finally instead of sending the case back for disposal by the trial Court and driving the parties to incurring of further unnecessary costs. It is true that when questions of facts are to be gone into and it is necessary to give an opportunity to the respondents to meet the allegations contained in the petition, the Court may think it fit to remit the case to the trial Court with directions for giving an opportunity to the respondents and for filing of affidavits but I do not think any hard and fast rule can be laid down that in each and every case of an appeal from an order summarily rejecting an application under article 226, the appellate Court is bound to remit the case for disposal by the trial Court. "this was concurred by Debabrata mookerjee, J. at paras 39 and 40 of the judgment, which are as follows :"the Couft's power to order a remand in a writ appeal has been considered in several cases. In the case of AIR 1954 Cal 60 the Court was called upon to decide whether an order of summary dismissal of a Writ Petition had been properly made. It was a decision rendered by G. N. Das, J. with whom I had the privilege of being associated. It was held that where the contentions raised involve an enquiry into questions of fact and of law the proper course would be to call upon the respondents to show cause why the order complained of should not be set aside Accordingly, the case was remanded with a direction to issue notice requiring the respondents to appear and show cause. The parties were directed to be given opportunity to file affidavits before the trial Court. A similar course was adopted in AIR 1958 Cal 559 where it was held by Chakravarti, C J. that if the application under Article 226 did not deserve to be thrown out at sight and there was matter to enquire into and investigate, the appellate Court would inteifere by setting aside the summary order of dismissal. A similar course was adopted in AIR 1958 Cal 559 where it was held by Chakravarti, C J. that if the application under Article 226 did not deserve to be thrown out at sight and there was matter to enquire into and investigate, the appellate Court would inteifere by setting aside the summary order of dismissal. A rule was accordingly directed to issue requiring the respondents in that case to certify to the Court the record of the proceedings in which the order complained of had been made and to show cause why the said order should not be quashed or such order or further order made as might seem to the trial Court fit and proper. The Rule thus issued was made returnable before the learned judge then taking applications under article 226 of the Constitution. Indeed, the Supreme Court took the same course in (S) AIR 1957 SC 354 . That was a case of industrial dispute between the management of a certain mill and its workers. The High Court had dismissed the petition in limine without giving an opportunity to contest the allegation of mala fides on the part of the Government. The order of summary dismissal was set aside and the matter remanded to the High Court with the direction to determine it after giving notice to the respondents. ""in my view the powers of the appellate Court in dealing with a writ appeal are in no way circumscribed by the writ rules. These rules are purely procedural ; they do not have the effect of limiting or enlarging the Court's power to dealing with and disposing of appeals. That power is defined elsewhere ; it is to be found in the Code which by Section 107 gives the appellate Court the power, inter alia, to determine a case finally or to remand it for further consideration. It is always for the appellate Court to decide what form the interference will take in a given case. In my opinion, there is nothing to prevent the appellate Court from determining finally an appeal from an order of summary rejection of a Writ petition if no further investigation is called for. It is always for the appellate Court to decide what form the interference will take in a given case. In my opinion, there is nothing to prevent the appellate Court from determining finally an appeal from an order of summary rejection of a Writ petition if no further investigation is called for. I do not think, however, the present appeal fulfils that test par- ticulaily in view of the custom's contention that the documents exibited by the appellant himself suggest that even the importation of the 15 tonnes of dunnage Wood had not been lawfully made. That raised questions of fact which I think can best be investigated upon the case being remitted to the trial court. "as we look at the whole issue the existence of power is one thing, while its exercise is another. Great care and caution guides the exercise of all judicial powers so is the case with the exercise of an appellate power. Justice of the situation is always a guiding factor and even when an order of a single Judge is based on a wrong premise, the appellate Bench may not interfere, if the order appealed against has fructified the just result, as observed by a Division Bench of this Court in State of Karnataka v G. Lakshman (ILR 1987 kar. 2223):"we are sitting in appeal against the decision of the learned single Judge of this Court. Unless the said decision is established to be 'clearly wrong', we cannot interfere with the said decision just because it is shown to be 'not right'. In Smt. Padma Uppal etc. . v state of Punjab and Others ( AIR 1977 SC 580 ) it is observed that a Court of appeal interferes not when the judgment under attack is not right, but only when it is shown to be wrong " ( 14 ) THEREFORE by conceding power in the appellate Bench of this Court to remand a case for further determination by the single Judge, the entity of this court as an integrated institution will not suffer. Such a recourse is incidental to the internal management of the judicial functions of this Court. However, the power of remand, which inhers in the appellate power, has to be, no doubt, exercised sparingly and under rare circumstances. Such a recourse is incidental to the internal management of the judicial functions of this Court. However, the power of remand, which inhers in the appellate power, has to be, no doubt, exercised sparingly and under rare circumstances. Coming to the case of this Court in ninganna v Narayana Gowda (1983 (1) kar L. J. 241), cited for the proposition that there is no power of remand, I find thdt that case does not decide the proposition which has been canvassed before us. In the context of the propriety of the remand order to be made, it was held that it was not 'appropriate' to make an order of remand having regard to the facts of the case. The relevant passage at page 120 reads thus :"therefore, in cur view in cases where a Division Bench hearing a writ appeal against an order of a single judge rejecting a Writ Petition at preliminary hearing without notice to the respondents or in a case of this type where the Writ Petition was heard and decided without impleading necessary parties as a result of which defect the order in the Writ Petition is liable to be set aside the writ matter having come up before the Division Bench, the most appropriate course for the Division bench is to decide the Writ Petition itself. Therefore, we are unable to agree that we have no jurisdiction to hear the Writ Petition but must remit it to the learned single Judge. In this view of the matter, we have heard the writ Petition on merits and are making this final order in it. "as a result of the aforesaid discussion, the answers to the questions referred to us may be stated as follows :- (I) That there is an inherent power in the Division Bench hearing writ appeal against an order of a learned single Judge to remand the case to be decided afresh by a learned single judge ; (II) That a remand order may be passed in cases where a Writ Petition has been dismissed for non-prosecution or in limine or on the ground of delay or maintainabilityor on some question of law without going into merits, etc. . . However, it is best in these matters to be neither dogmatic nor exhaustive, yet the aforesaid categories are the ones in which the Appellate Bench may exercise its power of remand ; and (III) That where a Writ Petition has been disposed of on merits by an order made by a learned single Judge, a Division Bench on Appeal would have no jurisdiction to remand such a case to a learned single Judge for fresh decision on merits and the appeal has to be disposed of on merits by the division Bench itself. Rama Jois, J : i have had the privilege and advantage of reading the opinion of Hon'ble the Chief Justice. Though I agree with the answers furnished therein to the question referred for the opinion of the full Bench, my approach to ihe points arising for consideration is substantially different, for, in my opinion, the question referred for the opinion of the Full Bench which by itself is of considerable importance, raises several other basic questions relating to the structure, constitution, organisation and general jurisdiction of the High Courts as established under the constitution OF INDIA. Therefore, I have considered it necessary to place my views on record. ( 15 ) THE question referred for the opinion of the Full Bench is : 'whether a division Bench hearing writ appeal against an order of Single Judge has the power to remand the case to the Single judge concerned or not ?' Sri N. Narasimha Murthy, Senior Counsel, whom we had requested to assist us and Sri H. K. Vasudeva Reddy, learned Counsel, who intervened with our permission, have made their submissions with regard to the points arising for consideration. ( 16 ) BEFORE referring to the submissions made by the learned Counsel for and against the proposition, it is appropriate to set out the salient features about the constitution, organisation and jurisdiction of the High Courts under the constitution OF INDIA. Article 214 provides that there shall be a High Court for each State. Article 216 provides that each High Court shall consist of a Chief justice and such number of judges as the president from time to time appoint. Article 214 provides that there shall be a High Court for each State. Article 216 provides that each High Court shall consist of a Chief justice and such number of judges as the president from time to time appoint. Article 225 provides that subject to the provisions of the Constitution the jurisdiction of the pre-existing High Courts as also the powers of the Judges thereof including the power to make rules regulating the procedure for the exercise of the jurisdiction and powers of the High court by a single Judge or by a Bench of two or more Judges, shall continue. Article 226 confers power on each of the high Courts to issue prerogative writs or orders of like nature for enforcement of fundamental rights as also for other purposes. Article 227 confers power of superintendance on each of the High court over the subordinate Courts and tribunals located within the territorial jurisdiction of the respective High Court. Thus an examination of the scheme of the constitution shows the High Court contemplated for each State is the highest Court for the State concerned. The only Court which is superior to the high Court under the scheme of the Constitution is the Supreme Court of India. An appeal lies to the Supreme Court against the decision of the High Courts on certificate by the High Court under articles 132, 133 and 134 (c) of the Constitution and as of right under Article 134 (1) (a) and (b) and with the special leave of the Supreme Court under Article 136 of the Constitution. ( 17 ) THE High Court constituted under the Constitution is one entity though the jurisdiction and powers conferred on it could be exercised by a Bench consisting of a single Judge or two or more Judges as prescribed under the provisions of an act of appropriate Legislature or in its absence under the Rules framed by the high Courts in exercise of its rule making powers saved by Article 225 of the Constitution. Whether the power of the High court is exercised by a single Judge bench or a Bench of two or more Judges, the orders passed by any of the Benches would be the order of the High Court. 5. Whether the power of the High court is exercised by a single Judge bench or a Bench of two or more Judges, the orders passed by any of the Benches would be the order of the High Court. 5. The position of the High Court in each State, therefore is similar to the high Court of England exercising its jurisdiction through single Judges or division Benches explained by Vaisay, J. in Hastings (No. 3) In re. 1959 (1) Ch. Dn. 377, while rejecting a second petition for habeas Corpus presented before the chancery Division of the High Court, after it had been rejected by Queen's Bench division of the same High Court. The observations read :"the applicant was very anxious to apply to the Chancery Division, but I think that his application is based upon a complete misconception. The mistake the applicant or his advisers made was to assume that the Chancery Division is a separate entity, a separate court, and thai either by single Judges or by a Divisional Court in can deal with the matter afresh. The applicant used an expression which he must suppose to be flattering to us who are sitting here. He said in his affidavit that he had decided to come for a "complete hearing a hitherto unconnected and impartial bench, and this I seek in the Chancery Court. " The number of misconceptions which are bound up in that sentence is almost beyond reckoning To being with, while i hope it is an impartial bench, it is certainly not an independent bench. Indeed, as Lord Parker has ruled with, i think, perfect accuracy, as soon as the Divisional Court of the Queen's bench Division has come to its conclusion there is an end of the matter, and as I observed yesterday, it always has to be remembered that our orders are not orders of any particular Division or any particular Divisional Court; our orders are orders of the High court. How we, judges of the High court, could be heard to override, overrule or otherwise interfere with a judgment which was the result of the hearing by the Divisional Court, or how we could be heard to say that the conclusion of that Court, and its order - an order of our own Court, the only Court which exists, the High Court of Justice - was wrong, and that something else should be done, is beyond my comprehension. When the Queen's Bench Divisional court, acting strictly under the rules, came to its conclusion that finally disposed of the application of this applicant for the issue of a writ of habeas corpus I cannot see how this Court, or how we as judges, could possibly be heard to stultify a decision of the Court of which we are ourselves constituent parts : we are all of us judges of the high Court. / cannot see how we could be heard to contradict an order which has been made for us in our name, and by the only Court which has jurisdiction in this matter. "but for the legacy, in the form of Letters patent appeals, against an order made by a single Judge of a High Court in the original jurisdiction of the High Court to two Judges of the same High Court, inherited by some of the High Courts established under the Charters issued by the British Crown ; which continues to be the law providing for thair constitution and organisation ; in view of the circumstance that no uniform law regulating the constitution, organisation and general jurisdiction and powers of all the High courts under the Constitution has been enacted by the Parliament under Entry 78 of List-l of the VII Schedule to the Constitution, the position of single Judge or division Bench of the High Court under the Constitution would also have been the same, as stated by Vaisey, J. and there would have been no question of the two judges of the High Court entertaining and hearing an appeal against the Judgment of the High Court itself rendered by one of its Judges. ( 18 ) IN the absence of an uniform law enacted by the Parliament ; following the pattern of the Letters Patent appeals in the chartered High Courts ; the State legislatures of Kerala and Karnataka made provision for an appeal against the decision of the High Court rendered by a single Judge, to a two Judge Bench of the High Court itself. These States were established with effect from 1-11-1956 under The State Reorganisation Act and the two High Courts were established under Section 49 (2) thereof. After the formation of the Karnataka State, the legislature of the State enacted the karnataka High Court Act. 1961, Section 4 of that Act reads :"4. APPEALS FROM DECISIONS of A SINGLE JUDGE OF THE HIGH court :-An appeal from a judgment, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court. "even after the above provision, there was no appeal against the decision rendered by the High Court under Article 226 of the Constitution, for, according to Section 9 of that Act the Writ Petitions were required to be heard, and decided by a bench consisting of two Judges. By the amending Act of 1973, Sections 9 and 10 of the Act were amended. According to amended Section 9, all petitions under article 226 except a petition seeking the issue of a writ of Habeas Corpus, are required to be heard and decided by a single Judge and according to Section 10, writ appeals presented under Section 4 of the Act are to be heard by a Bench of two Judges. It is in view of the above provision, appeals are being entertained by the High Court against the decision of the High Court itself rendered by a single Judge. It is in view of the above provision, appeals are being entertained by the High Court against the decision of the High Court itself rendered by a single Judge. ( 19 ) IN Writ Appeal No. 35/1976, a division Bench of this Court made an order setting aside the order made by venkataramaiah, j. (as he then was) in writ Petition No. 5540/1975 dismissing the Writ Petition and remitted the matter to the learned Single Judge with a direction to permit the writ petitioner to imp- lead the State Government and owners of the land concerned as respondents to the petition. A learned Judge before whom the Writ Petition was posted for hearing, raised the question as to whether a Division Bench could remit the matter to a singie Judge in view of the Division Bench judgment of this Court in Ninganna v. Narayana Gowda (1983 (1) Kar. L. J.) ( 20 ) IT is appropriate at this stage to state that the question as to whether a provision, providing an appeal from decision of the High Court rendered by one judge, to the High Court exercising its jurisdiction through two Judges is permissible at all under the scheme of the constitution ? and even if it is permissible whether the State Legislature could; which has jurisdiction only to enact law on the topic of administration of justice under Entry 11-A of the Concurrent List (Entry 3 of the State List prior to the 42nd amendment of the Constitution) not only confer appellate jurisdiction on the high Court with respect to any of the matters in List II and List III of the VII schedule by virtue of Entries 65 and 46 of the respective list; in respect of which the State Legislature has the power to legislate but also confer a general appellate jurisdiction over the High Court itself in the form of writ appeals, has been the subject matter for decision of the Full bench of the Kerala Karnataka and madhya Pradesh High Courts A Full bench of the Kerala High Court in kochikka v. Kunjpennu (AIR 1961 kerala 226) and of this Court in state of Karnataka v Krishnappa (ILR 1975 Kar. 1015) have taken the view that the power to make a law conferring appellate jurisdiction over the High Court on the High Court, was merely a matter of practice and procedure and therefore a provision for an appeal againt the decision of the High Court rendered by a single Judge to a two Judges Bench could be provided for by making a law on the topic of 'administration of Justice'. ( 21 ) THE Full Bench of the Madhya pradesh High Court, in Balakrishnadas v. Pottery Co, Ltd. (AIR 1985 M P. 42) in the context of a challenge to the validity of law enacted by the State Legislature, abolishing the Letters Patent jurisdiction inherited by the Madhya Pradesh High court ; held that a matter like conferment of general appellate jurisdiction on the high Court against the decision rendered by the High Court itself was neither a matter of practice or procedure falling within the scope of entry 'administration of Justice' nor a matter relating to conferment of special jurisdiction on the high Courts in respect of matters in Lists ii and III of the VII Schedule to the Constitution on which topics the State legislature was competent to make the law. The Full Bench held that the legislative power to confer general appellate jurisdiction over the decision of the High court rendered by a Single Judge to a two Judge Bench of the High Court was essentially a matter relating to constitution and organisation of the High Courts and therefore squarely falls Entry 78 of union List and consequently falls within the exclusive legislative powers of the parliament. On this view of the matter, the Full Bench held that the law abolishing letters patent jurisdiction which vested in the high Court as part of its constitution was beyond the competence of the madhya Pradesh Legislature. An appeal against the said judgment is stated to be pending before the Supreme Court (see : head note in Umaji v Radhika Bai ( AIR 1986 SC 1272 ). An appeal against the said judgment is stated to be pending before the Supreme Court (see : head note in Umaji v Radhika Bai ( AIR 1986 SC 1272 ). If the view of the Full bench of the Madhya Pradesh High Court is correct, a provision creating an appeal against the decision of the High Court rendered by a Single Judge to two judges of the same Court would not be a matter of practice and procedure but would be a matter of inherent general jurisdiction as part of the constitution and organisation of the High Court and therefore only the parliament would have the competence to make such a law. Another question which arises would be whether even the Parliament in exercise of its ordinary legislative power under A'ticles 245 and 246 can create an appellate jurisdiction over the High courts ? In this context it appears to me there exists a clear distinction between the power of the Legislature to make a law providing that a single judge or specified number of judges of the High Court should exercise the jurisdiction vested in a High Court under the Constitution and the power to make a law that an appeal shall lie from the decision of the High court in exercise of the jurisdiction vested in it by the Constitution under Articles 226, 227 and 228. While the former is a matter of practice and procedure and therefore certainly within the competence of the appropriate legislature, can the latter which amounts to creation of a court of appeal and an appellate jurisdiction above the High Court, be done except by the exercise of constituent power of Parliament ? On this aspect, the views expressed by Kirty, J, of the allahabad High Court in the case of Hakim singh v. Shiv Sagar (AIR 1973 Allahabad 597 at (F. B.) ) are apposite. They read : all the same it may be pointed out that in so far as the Constitution itself contains specific provisions in regard to high Courts and the jurisdiction and powers of such Court, neither Parliament nor any State Legislature can make laws in exercise of their respective legislative powers, the field of exercise of which is provided for is three Lists of the Seventh Schedule. Take for instance Articles 226, 227 and 228 which confer by their own force and expressly a variety of jurisdiction and powers on High Courts. No law can be made by any State Legislature or even by Parliament in exercise of the powers given to these bodies under Articles 245 and 246 to make laws, so as to amend, alter or repaal the aforesaid Articles. No doubt parliament can make such a law by virtue of the special provisions contained in Article 368. " if this view is correct ; in my opinion it is ; as creating an appellate jurisdiction over the jurisdiction vested in the High courts under Articles 226, 227 and 228 amounts to amendment of the Constitution, it can be brought into existence only by an appropriate amendment to the constitution and establishing two tiers in the High Courts. ( 22 ) WITH this background, I proceed to consider the submissions made by the learned Counsel. Sri R. N. Narasimha murthy. learned senior Counsel, submitted that once an appeal lies to a Division bench of two judges against a decision of a learned Single Judge, it follows that all the powers of the appellate Court under the Code of Civil Procedure could be exercised by the Division Bench. He referred to Rule 39 of the Writ Proceedings rules which reads :"39. Application of the High Cour of Karnataka Rules, etc. ,-The provisions of the High Court of Karnataka rules, 1959, the rules made by the high Court of Karnataka under the karnataka Court Fees and Suits Valuation Act, 1958. and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under Article 226 (and/or article 227) and writ appeals in respect of matters for which no specific provision is made in these rules. "he submitted that in view of the above rule, the provisions of Order 41, Rules 23 to 26a, which confers power of remand on the appellate Court, apply to writ appeals and therefore the question has to be answered in the affirmative. "he submitted that in view of the above rule, the provisions of Order 41, Rules 23 to 26a, which confers power of remand on the appellate Court, apply to writ appeals and therefore the question has to be answered in the affirmative. He also submitted that in the case of Umaji ( AIR 1986 SC 1272 ) the Supreme Court has held that Letters Patent appeal lies to a two judge Bench of the High Court against a decision rendered by a single judge exercising even the constitutional jurisdiction vested in the High Court under Article 226 and that once an appeal- lay, the power of remand was incidental to the powers exercisable by the Division bench as an appellate Court. ( 23 ) SRI H. K. Vasudeva Reddy, learned Counsel, submitted that as the constitution provides for the establishment of a High Court as a single entity and confers jurisdiction on the Court as such and not on judges individually, an appeal provided under Section 4 of the act, cannot at all be regarded as an appeal as generally understood, for, the very concept of appeal presupposes the existence of an inferior and a superior court and a provision for an appeal from the former to the latter, as observed by the Supreme Court in the case of Shankar v. Krishna ( AIR 1970 SC 1 ) He therefore submitted that a writ appeal cannot at all be equated to an appeal which lies to a superior Court, which could exercise all the powers conferred on an appellate court under Order 41, Rules 23 to 26a of the Code. Order 41 Rules 23 to 26a of the code of Civil Procedure read : ( 24 ) REMAND OF CASE BY APPELLATE COURT : Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand. 23a. REMAND IN OTHER CASES : where the Court from whose decree an appeal is preferred has disposed of the r. 67 case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary the appellate Court shall have the same powers as it has under Rule ( 25 ) WHERE EVIDENCE ON RECORD sufficient APPELLATE COURT MAY determine CASE FINALLY :-Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds. ( 26 ) WHERE APPELLATE COURT may FRAME ISSUES AND REFER them FOR TRIAL TO COURT WHOSE decree APPEALED FROM-Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate court essential to the right decision of the suit upon the merits, the Appellate court may, if necessary, frame issues, and refer the same for trial to the court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required ; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time. ( 27 ) (1) FINDINGS AND EVIDENCE to BE PUT ON RECORD. OBJECTIONS TO FINDING-Such evidence and findings shall form part of the record in the suit ; and either party may, within a time to be fixed by the appellate Court present a memorandum of objections to any finding. (2) DETERMINATION OF APPEAL : after the expiration of the period so fixed for presenting such memorandum the Appellate Court shall proceed to determine the appeal. 26a. ORDER OF REMAND TO mention DATE OF NEXT HEARING - where the Appellate Court remands a case under Rule 23 or Rule 23a, or frames issues and refers them for trial under Rule 25, it shall fix a date for the appearance of the parties before the court from whose decree the appeal was preferred for the purpose of receiving the directions of that Court to further proceedings in the suit. Thesd provisions are intended to confer power of remand on an appellate Court to which an appeal lies under the Code from the decision of a subordinate Court. Rule 39 of the Writ Proceedings Rules expressly provides that the provisions of the Code are applicable to writ appeals as far as may be. The nature of a remand order which could be made and the direc ions which could be issued under the Rules 23 to 26a of Order 41 are such which could be made or issued by a superior court to an inferior Court. The nature of a remand order which could be made and the direc ions which could be issued under the Rules 23 to 26a of Order 41 are such which could be made or issued by a superior court to an inferior Court. Therefore, it appears to me that as the order made in wrie Petition by a single Judge against which a writ appeal lies to a two judge bench of this Court, is also an order made by this Court, the appeal cannot in all respects be equated to an appeal as understood in the Code and consequently the provisions of Rule 41, Rules 23 to 26a cannot apply, to writ appeals. Regarding the nature of such an appeal, the Supreme Court has observed thus in umaji's case ( AIR 1986 SC 1272 ). "101. Consequently, where a petition filed under Article 226 of the constitution is according to the rules of a particular High Court heard by a single Judge, an infra-Court appeal will lie from that judgment if such a right of appeal is provided in the charter of that High Court, whether such charter be Letters Patent or a Statute. Clause 15 of the Letters Patent of the bombay High Court gives in such a case a right of intra-Court appeal, and, therefore, the decision of a single Judge of that High Court given in a petition under Article 226 would be appealable to a Division Bench of that High court. "from the above observations, it is clear that it is an intra-Court appeal and not an inter-Court appeal. There is no separate Court to which a matter in appeal could be remitted. Taking note of the fact that Article 226 of the Constitution conferred jurisdiction and power to issue writs on the High Court and there was no provision in the Constitution conferring writ appellate jurisdiction, the full Bench of this Court in Krishnappa's case (ILR (Kar.) 1975 : 1015), even after upholding the validity of Section 4 providing an appeal, stated thus :"106. Once it is held that there is nothing in Article 226 which requires that the powers thereunder must be exercised once and for all and that the division Bench which hears and decides an appeal from a decision of a single judge of the High Court, exercises the same power which the single Judge has under Article 226, we are unable to see how the provision for such appeal can be regarded as adding to the provisions of Article 226 of the Constitution. "it is in view of these observations, a division Bench of this Court in Ninganna's case (1983 (1) Kar L J. 241 ). on the very point arising for consideration in this case, said thus :"the writ appeal jurisdiction, therefore, cannot be compared and is not akin to, an appellate jurisdiction as ordinarily understood, which presupposes the existence of a superior Court and an inferior Court (See Shankar ramachandra Abhyankar v. Krishnaji dattatreya- AIR 1970 SC 1 ) and no such relationship exis's between a single Judge and a Division Bench as both exercise the jurisdiction vested in the high Court. There is no difference between a Writ Petition referred to a division Bench or a Writ Petition which comes up before a Division Bench through a writ appeal, in the matter of exercise of the jurisdiction and powers of this Court under Article 226 of the constitution. Therefore, in our view in cases where a Division Bench hearing a writ appeal against an order of single judge rejecting a Writ Petition at preliminary hearing without notice to the respondents or in a case of this type where the Writ Petition was heard and decided without impleading necessary parties as a result ot which defect the order in the Writ Petision is liable to be set aside, the writ matter have come up before the Division Bench, the most appropriate course for the Division bench is to decide the Writ Petition itself. "a Division Bench of this Court in J. B. Venkate Gowda v. Hassan Development bank (W. A. Nos. 133 and 134 of 1987 : DD: 26-6-1987) expressed the view that the above decision requires reconsideration in the light of the judgment of the Supreme Court in Umaji's case ( AIR 1986 SC 1272 ). "a Division Bench of this Court in J. B. Venkate Gowda v. Hassan Development bank (W. A. Nos. 133 and 134 of 1987 : DD: 26-6-1987) expressed the view that the above decision requires reconsideration in the light of the judgment of the Supreme Court in Umaji's case ( AIR 1986 SC 1272 ). That was an appeal which arose out of an order of a single Judge dismissing a Writ Petition for default and not on merits. ( 28 ) ON reconsideration of the matter in the light of the judgement of the Supreme Court in Umaji's case ( AIR 1986 SC 1272 ), I am of the view that if a Writ petition has been dismissed for non-prosecution or in limine on grounds such as delay, maintainability etc , and not on merits by a learned single Judge and such an order is taken in appeal and the Division Bench sets aside such an order, the writ Petition gets restored. As a consequence, in view of Section 9 of the Act and the Rules, the Writ Petition has to be posted for preliminary hearing or final hearing, as the case may be, before a learned single Judge. It is in this manner and to this extent, it appears to me it can be said that the Division Bench has the inherent or incidental power to bring about a remand of the Writ Petition by a learned single Judge. ( 29 ) FOR these reasons, I agree with the answers given by my Lord the Chief justice. Shivashankar Bhat, J. I had the privilege and advantage of reading the opinion of my Lords the Chief justice and Rama Jois, J. I fully concur with the reasoning of and the conclusion arrived at by my Lord the Chief Justice. Whether a Bench hearing an appeal under Section 4 of the Karnataka High court Act, 1961 could remand the matter to be tried under the original jurisdiction depends upon the scope of power conferred by the statute. The provision for appeal has already been upheld by a Full bench of this Court earlier (vide State of karnataka v. Krishnappa (ILR (Kar.) 1975 1015 ). The provision for appeal has already been upheld by a Full bench of this Court earlier (vide State of karnataka v. Krishnappa (ILR (Kar.) 1975 1015 ). Once an appellate forum is recognised by the statute and the exer- cise of the power by the said forum is not in any way restricted or circumscribed by the statute which created the said forum, i am of the view that the scope of the said power will have to be understood with reference to the nature of the power vested by the statute. Section 4 referred to above provides for an appellate forum. In the absence of any restriction, it should be understood that the appellate power under the said provision has all the qualities of any other appellate power. The fact that it is an intra Court appeal may be a relevant factor in considering the appropriateness of making a particular order in the course of exercising the said appellate power. An appellate power necessarily includes a power to remand the cause to be decided by the original authority or Court. Such a power is inherent in the appellate power. Since the appellate power is conferred on a Bench ot the same High court here, while exercising the said appellate power necessarily the appellate bench will have to be guided by principles of propriety while remitting a cause to the original side Bench. It is background i consider that the power to remit a cause to the original Bench by the Division Bench will have to be sparingly used when the situation absolutely warrants such a remand, as opined by my Lord the chief Justice. --- *** --- .